IT law

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Unlawful Use of Social Media Information

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social mediaThe concept of "Fake Accounts"  , which we can call the dark and risky side of the advertisement, offers users a wide range of action in terms of social media being a virtual environment and in resorting to unfair and unlawful acts and actions by acting with the comfort of "I will not be seen by anyone". More to usersIn addition to providing the opportunity to write articles to express themselves comfortably and to share images and videos, they can act more comfortably by using the names, photographs, in short, personal information of others illegally. As such, the number of crimes committed through social media is increasing day by day.

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Turkish Penalty Number 5237When Law a is examined, it emerges that a wide list of crimes can be committed through social media:

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one.Blocking of Communication (TCK art. 124)
2.Violation of the Confidentiality of Communication (TCK art. 132)
3.Listening and Recording Conversations Between People (TCK Art. 133)
4.Violation of the Privacy of Private Life (TCK art. 134)
5.Recording of Personal Data (TCK Art. 135)
6.Giving or Capturing Data Unlawfully (TCK Art. 136 and Art. 137)
7.Fraud Through Information Systems (TCK art. 158-1/f)
8.Fraud by Taking Advantage of the Facilitation of the Press and Broadcasting Tools (TCK Art. 158-1/g)
9.Immoral Acts (Article 225 of the TCK)
10. Obscenity (TCK art. 226)
11th.Disclosure of information or documents qualified as trade secrets, banking secrets or customer secrets (TCK art. 239)
12.Entering the Information System (TCK art. 243)
13.Crime of Blocking, Destroying, Making the System Inaccessible, Destroying or Changing the Data (TCK art.244)
14.Offense of Abuse of Bank or Credit Card (TCK art.245),
15.Offense of Using a Forbidden Device or Program (TCK art.245/a).
16.Disclosure of the Secret of the Mission (TCK Art. 258)
17.Slander (TCK art. 267)
18.Use of Someone Else's Identity or Identity Information (TCK Art. 268)

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Evaluation in Terms of Criminal Law

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Although many crimes can be evaluated according to the way the incident occurred, with the use of social media tools  the use of personal information in the social media account, which is known by everyone and/or easily accessible and known, by opening fake accounts and unfair advantage When it is evaluated which crime or crimes can be caused by this event one by one, it has been concluded that they have committed crimes of qualified fraud by using information systems as a tool in accordance with Article 136 of the Turkish Penal Code and Article 158 of the Turkish Penal Code.

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In particular, there was a need for a detailed explanation as to why the subject cannot be considered as Recording Personal Data or Entering the Information System or Using the Identity or Identity Information of Others:

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The crime of recording personal data

 

It occurs when any information in the nature of personal data belonging to an identified or identifiable person is recorded in an unlawful manner, as expressly regulated by the law.

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Personal data recorded unlawfully does not have to be a secret. Recording of personal data; It is the recording as "unlawful" of all data that is not disclosed to the information of unauthorized third parties, disclosed to other people when requested, but shared with a limited circle, that is not known by everyone or cannot be easily accessed and known, that determines the identity of the person or makes it identifiable. The provision has clearly defined illegal recording as a crime, but the unlawful use of which can constitute a crime only requires the unlawful capture, transfer and dissemination of this personal data.

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When we look at the settled decisions of the Court of Cassation, the concept of "personal data", which constitutes the material subject of this crime, is the population information (TR identity number, name, surname, place and date of birth, mother, etc.) Biological samples such as criminal record, residence, educational status, occupation, bank account information, telephone number, e-mail address, blood type, marital status, fingerprint, DNA, hair, saliva, nails. Understanding all kinds of information belonging to a real person, such as sexual and moral disposition, health information, ethnic origin, political, philosophical and religious views, union connections, which determine the identity of the person or make it identifiable, distinguish the person from other individuals in the society and are suitable for revealing his qualities. required. Even though personal information that is known and/or easily accessible and known by everyone is legally accepted as "personal data", the application area of the aforementioned article is expanded beyond the intended one and in order to avoid negative consequences such as uncertainty in practice and almost every action creating a crime, the article should be considered as "personal data". In its application, it is necessary to make a careful evaluation by taking into account the characteristics of the concrete case, to determine whether there is a reason for compliance with the law that can be accepted by any branch of law or if there is an issue that can be taken into account in this context, and it is also determined that the accused knows or can know that he has acted unlawfully with his action. must.

 

The photos shared by the personal data owner publicly were not seized unlawfully, but were used unlawfully without the explicit consent and knowledge of the personal data owner. This usage will be considered as an act of another crime as fraudulent behavior for the purpose of committing the crime of Fraud Through Information Systems (TCK art.

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crime of hacking into the computer system

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It means accessing the data in an information system by connecting remotely or by physical proximity to the electronic system itself. The crime of entering the information system is the simplest type of crime to be committed among the computer crimes. For example, accessing a person's facebook, twitter, instagram, e-mail addresses without permission, by deactivating the user's password or other security measures, is punished as a crime to enter the information system. Let's just say that it can be understood in many ways whether the user allows access or not. For example, by establishing a friendship connection in a virtual environment on Facebook or by choosing certain options, the user determines which information he/she opens to whom. Trying to access the information that the user has not made accessible illegally by using some tricks in the electronic environment causes the crime of entering the information system.

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In the unfair use of photos that people keep on social media and make available to everyone, it can be concluded that the crime of entering the information system does not occur, considering that it is used without authorization, not by illegally entering the information system, but by sharing it publicly on the social media account.

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The crime of using someone else's identity or identity information

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In terms of the name of the crime,  It is regulated as "Anyone who uses someone else's identity or identity information in order to prevent investigation and prosecution against him due to the crime he has committed will be punished in accordance with the provisions regarding the crime of slander". It has been stated that it is a special way of processing.

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According to the legal regulation, in order to prevent the investigation and prosecution of the person due to the crime he/she has committed, using someone else's identity or identity information is sanctioned, and it is clearly stated in the justification of the article that this crime is a special form of slander. Accordingly, in the investigation or prosecution initiated against the perpetrator due to the crime he/she has committed, a crime will occur if the perpetrator gives the identity or identity information of another person who actually exists to the competent authorities carrying out the proceedings in order to prevent investigation and prosecution against him/her. However, in order for a crime to occur, a previous crime must exist. In other words, the perpetrator should try to hide his identity because of the crime he has committed and after committing the crime, and he should give the identity or identity information that he knows belongs to someone else to the competent authorities.

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In the unfair use of existing identity information on social media, it is not used to prevent an investigation or prosecution/initiation due to a "crime committed", but to directly gain benefits by using this identity information. For this reason, it can be said that the elements of the crime of qualified fraud are met, not this crime.

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Qualified fraud offense

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The perpetrator must mislead a person with fraudulent acts that can deceive him and benefit himself or someone else at the expense of him or someone else. It's a cheating lie. The fraudulent behavior by the perpetrator should be heavy, intense and skillful to a certain extent, and there should be some actions that will eliminate the possibility of the victim's examination in terms of being exhibited. The victim should be misled by the fraudulent behaviors used, and the accused or someone else should be given an unfair advantage by the victim who believes the lies as a result of this deception. Whether the fraud is deceptive or not should be evaluated in every case, the nature of the event, its relationship with the act, the situation of the victim, and the qualities of the document, which was hidden or changed if used, should be taken into account separately.

 

The crime of fraud through the use of information systems has been accepted as the qualified form of the crime of fraud. Since it is not possible to talk about the deception of the information system, it is possible to mention that this situation occurs only if a person is deceived, that is, defrauded, by using this system as a tool.

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The purpose of the information system is magnetic systems that allow automatic processing after collecting and placing data. Today, many innovations such as audio-visual communication with information systems, acceptance of electronic signature, new commercial relations, internet banking service and money transfers have entered social life, informatics has reached an indispensable point in both business and daily life, information technologies are faster and faster. It has become more preferred than classical methods due to its cheap and inexpensive nature. These systems are considered qualified because they are used safely, can be accessed quickly and easily by many people at the same time, and reduce the possibility of control of the perpetrator on the other side. In order for banks or credit institutions to be used as a tool, it is necessary to benefit from the ordinary activities of the banks or the subjects carrying out this activity by using fraudulent tools, or to gain unfair advantage by using the material assets produced by the banks and credit institutions due to their ordinary activities as a tool in the crime.

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Although the decision that has recently gained consistency in the decisions of the Supreme Court regarding fraudulent activities carried out on websites is that qualified fraud was committed through information systems, it is that fraudulent crime was created by taking advantage of the convenience provided by the media and broadcasting tools on the same issues in the past.

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Authorized court

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In the first paragraph of Article 12 of the Criminal Procedure Code numbered 5271, titled “Authorized Court”, it is stated that the jurisdiction to hear the case belongs to the court of the place where the crime was committed. The place that is most interested in the commission of the crime and which is undoubtedly important in terms of finding and easily collecting the evidence is the place where the crime was committed.

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In terms of Fraud Through Information Systems, since the element that completes the crime is “providing benefits”, it will be necessary to accept that the unfair benefit was obtained during this benefit, since fake social media accounts are used unlawfully with fraudulent behavior and benefits are provided. In this case, it will be necessary to evaluate whether the crime is within the jurisdiction and jurisdiction of the Turkish courts, in accordance with the principle of ownership applicable to the criminal law, wherever this benefit is achieved and especially if such an interest is provided abroad.

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Regardless of whether he is a foreigner or a citizen of crimes committed in Turkey, the perpetrator is punished according to Turkish laws. In the law, it is accepted that if the act is committed partially or completely in Turkey, or if the result takes place in Turkey, the crime will be deemed to have been committed in Turkey (Article 8 of the TCK).

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In this case, if the benefit is obtained from the illegal use of social media information, the benefit will have to be partially or completely realized in Turkey in order for the crime of qualified fraud to be punished according to Turkish laws.

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In order for a foreigner who commits a crime "to the detriment of Turkey" in a foreign country to be tried in Turkey, the following conditions must be met according to the practice of the Court of Cassation (Article 12/1 of the TCK):

 

• The crime committed abroad, that is, outside the jurisdiction of the Republic of Turkey.

• The crime was committed by a foreigner.

• The lower limit of the crime requires at least one year imprisonment according to Turkish Laws.

• Committed the crime to the detriment of a citizen of the Republic of Turkey or a private legal entity.

• Presence of the perpetrator in Turkey.

• Not having been sentenced in a foreign country for the crime.

• Complaint of the injured party.

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In case the crime is committed abroad by the foreigner "against the foreigner", that is, the victim is a foreigner, the following conditions must be met together in order for an investigation and prosecution to be carried out in Turkey (Article 12/3 of the TCK):

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• The lower limit of the crime requires a prison sentence of not less than three years.

• The absence of an extradition agreement between the State where the crime was committed and Turkey.

• Even if there is an extradition agreement between the state where the crime was committed and Turkey, the request for extradition is not accepted.

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The summary conclusion reached in the light of all these explanations is as follows:

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In terms of the Offense of Giving or Spreading the Data Unlawfully, if this offense is committed against a Turkish citizen, it will be within the jurisdiction and jurisdiction of the Turkish judiciary.

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In terms of Qualified Fraud Crime, if the fraud is committed against a Turkish citizen, the perpetrator should be in Turkey; If it has been committed against the foreigner, there is no extradition agreement between the state where the crime was committed and Turkey, and even if there is an extradition agreement between the state where the crime was committed and Turkey, the request for extradition should not be accepted. Here again, the perpetrator must basically be in Turkey.

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Alternative Methods

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Law No. 5651 on Regulation of Broadcasts on the Internet and Combating Crimes Committed Through These BroadcastsDue to the violation of personality rights, the content should be removed from the broadcast and access should be blocked. Accordingly, the person who thinks that his personal rights have been violated has two options. These:

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• First of all, it can apply to the content provider, if it cannot reach the hosting provider, and request the removal of the infringing content within the scope of the warning method. Besides, Facebook, Instagram, Twitter etc. In social platforms that are actively used today, there is a "complain" button for both user accounts and content. You and your friends on social media can remove the fake account opened in your name from the relevant platform via the "report" button. The request of the person whose personal right is violated is answered by the content and/or hosting provider within 24 hours at the latest.

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• If the applications made to content and hosting providers are unsuccessful, you must apply to the nearest Criminal Judgeship of Peace on the grounds that your personal rights have been violated and request that access to the URL/DomainName/IP address/addresses that you specify in your petition be blocked in accordance with Law No. 5651. The Criminal Judgeship of Peace decides on the application within 24 hours at the latest without holding a hearing. If the judge detects a violation of personality rights, it decides to block access to the URL/Domain Name/IP address of the infringing content.

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Brand registration

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By registering a trademark , which is "name, term, sign, symbol, design or a combination of all these, which is used to identify the goods and services of an enterprise or a group of enterprises and to differentiate them from the goods and services of their competitors" with the trademark registration method. benefiting from the copyright protection provided by the trademark registration can be evaluated.

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Legally, the right to name is a sign that distinguishes people from others and introduces them in society, and therefore the right on the name is a personality right. Personal rights, on the other hand, can be defined as “the rights over all elements that ensure the free development of a person's dignity and personality in society”. The use of someone else's name is usually intended to take advantage of that person's public recognition.

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Trademarks containing names and surnames are frequently subject to registration procedures. It can be said that this method, which people use to protect their names, is an effective method for protecting name rights as well as personality rights specified in the Civil Code.

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Creating a brand by using the names of well-known people undoubtedly depends on their permission. Unauthorized use constitutes an infringement of their personality rights. If there is a registered brand name in the middle, then it is not only personal rights protection under the Turkish Civil Code, but also international

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It will be possible to benefit from the protection within the provisions of the Paris Convention or the Agreement Establishing the World Trade Organization.

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Other quick and technical methods

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• The password of the Instagram account and the e-mail account linked to the account should be changed with a strong password in terms of security, and this information should not be shared with anyone. It is important that the same password is not used in different channels. Two-factor authentication should be considered as an additional security measure.

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• The permissions of third-party applications to access your account should be revoked. 

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• To indicate that the photos shared on Instagram belong to you, a small logo/icon etc. can be placed on the photos. placement should be considered.

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• One of the ways you can get a quick response regarding the theft of your Instagram photos is to file a complaint with the Instagram help section. If you have a blue tick, the transactions will be accelerated. For this, from within the Instagram application or via linkYou need to send a photo of your identity information to Instagram by clicking on the  taklit account report option and filling out the relevant sections. Only one fake account can be reported with each form.

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